Courtney v R

[2007] NSWCCA 195

Reported Decision: 172 A CRIM R 371

New South Wales

Court of Criminal Appeal

CITATION:	Courtney v Regina [2007] NSWCCA 195
HEARING DATE(S):	6 June 2007
JUDGMENT DATE:	4 July 2007
JUDGMENT OF:	Basten JA at 1; Grove J at 29; Howie J at 82
DECISION:	Extension of time granted; By majority, Leave to appeal against sentence granted and appeal dismissed
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - ROBBERY AND ATTEMPTED ROBBERY WHILST ARMED WITH A KNIFE - MENTALLY ILL OFFENDER - SPECIAL HEARING - CHALLENGE TO SETTING OF LIMITING TERMS - FORENSIC PATIENT GIVEN TO VIOLENCE AGAINST SELF AND OTHERS - UNAVAILABILITY OF SUITABLE HOSPITAL FOR HER DETENTION - WHETHER DISCRETIONS OF SENTENCING JUDGE IN SETTING LIMITING TERMS MISCARRIED
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990 Mental Health (Criminal Procedure) Amendment Act 2005 (NSW)
CASES CITED:	AB v The Queen (1999) 198 CLR 11 Baumer v The Queen (1988) 166 CLR 51 DPP v Mills [2000] NSWCA 236 R v. AN (No 2) [2006] NSWCCA 218 R v. Callaghan [2006] NSWCCA 58 R v. Ehrenburg (unrep, 14 Dec 1990) R v. Eliasen [1991] 53 A Crim R 391 R v. Engert [1996] 84 A Crim R 67 R v. Hemsley [2004] NSWCCA 228 R v. Henry (1999) 46 NSWLR 346 R v. Holder & anor (1983) 3 NSWLR 245 R v. Israil [2002] NSWCCA 255 R v. Jiminez [1999] NSWCCA 7 R v. McNaughton [2006] NSWCCA 242 R v. Mailes [2003] 141 A Crim R 353 R v. Mitchell [1999} 108 A Crim R 85 R v. Schneidas (unrep. 22 Aug 1994) NSWCCA R v. Smith (1987) 44 SASR 587 R v. Tsiaras [1996] 1 VR 398 R v. Young [1999] NSWCCA 275 Rigby v. Regina [2006] NSWCCA 205 Smith v. Regina [2007] NSWCCA 39 The Queen v. Verdins [2007] VSCA 102 Veen v. The Queen [No 2] (1998) 164 CLR 465
PARTIES:	Lisa Michelle Courtney v Regina
FILE NUMBER(S):	CCA 2007/1063
COUNSEL:	A. Haesler SC with G. Wright (Appellant) D. Woodburne (Respondent/Crown)
SOLICITORS:	S.E. O'Connor (Appellant) S. Kavanagh (Respondent/Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/1046
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ
LOWER COURT DATE OF DECISION:	07/05/04

COURTNEY v. REGINA

The appellant was charged with assault with intent to rob whilst armed with an offensive weapon and robbery whilst similarly armed. In each case the victim was a woman who was alone in a public place and the weapon was a knife. The offences occurred in January 2001 and the appellant was arrested in that month, a current order for parole was revoked and she commenced to serve the balance of that parole.

In June 2002 the appellant was found unfit to be tried for these offences and a special hearing was directed which took place in March 2004. Following findings of proof of the commission of the offences on the limited evidence, concurrent limiting terms of five years were imposed to commence at the expiry of the balance of parole (18 December 2002) with the terms themselves to expire on 17 December 2007.

As a forensic patient the appellant has been reviewed from time to time by the Mental Health Review Tribunal. She is assessed as at severe risk of self harm and harm to others. She has remained in prison detention, it being found by the Tribunal that there is no hospital capable of accommodating her because of her ongoing problems of violence.

An application for extension of time to apply for leave to appeal against sentence was lodged in April 2007.

Held (by the Court): The extension of time should be granted.

Affidavit evidence detailing the circumstances of the appellant’s custody since the fixing of the limiting term for the purpose of seeking to establish error should be rejected.

(Per Basten JA, dissenting): The sentencing judge erred in holding that although the appellant was not a suitable vehicle for reflection of general deterrence, “more specific consideration” should be given to the question of specific deterrence. It was not clear how his Honour took into account that the appellant was not fully aware of the consequences of her actions because of her disabilities. Imprisonment is unlikely to have any effect on the behaviour of the appellant and her moral culpability is limited. The limiting terms should be set aside and, given the exigencies of the situation, limiting terms of four years and nine months expiring on 17 September 2007 should be imposed.

(Per Grove J): Identified procedural irregularities were of no relevant consequence. In his reference to “specific consideration” to specific deterrence, his Honour was saying no more than that it should have particular attention when general deterrence was an inappropriate factor. There was no indication that undue weight was given to personal deterrence and his Honour committed no error.

Remarks that were made to the appellant describing the regime of review by the Tribunal to which the appellant would be subject did not demonstrate erroneous formulation of terms on an assumption that the appellant would not be in gaol for the entirety of them.

There was no failure to adhere to the principle of totality. The requirement for protection of the public was properly given significant weight. The grounds of appeal are not made out and the appeal should be dismissed.

(Per Howie J): There was error by the sentencing judge referring to the need for personal deterrence because it is obvious that it would have no effect.

The appellant required detention because she presented a danger to society. The offences were serious and, even if error were established, no lesser terms should have been imposed. They were proportionate to the objective criminality and necessary for the protection of the public.

2007/1063

BASTEN JA
GROVE J
HOWIE J

Wednesday 4 July 2007

LISA MICHELLE COURTNEY v REGINA

Judgment

1 BASTEN JA: The problems faced by the courts in dealing with people who are mentally ill and prone to violent behaviour are perennial and to an extent intractable. If a person’s mental condition at the time of an offence is sufficiently serious to constitute insanity, the person cannot be properly dealt with by the criminal justice system, in relation to crimes which involve intentional acts. Where a person is unfit to plead, he or she should not be submitted to a trial in criminal proceedings. In each case, the imposition of punishment, being the usual outcome of conviction for a criminal offence, is inappropriate. Nevertheless, one function of the criminal justice system, namely to protect the community from violent individuals, remains apposite.

2 Where, as in the case of the present applicant, a person is found to be unfit to be tried, the Mental Health (Criminal Procedure) Act 1990 (NSW) requires a “special hearing” at which “the question whether a person has committed an offence” is to be determined: Mental Health (Criminal Procedure) Act, s 19(2). Section 23 then provides:

“ 23 Procedure after completion of special hearing
(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:
(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and
(b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term , in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.
(3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.”

3 Since the nomination of a limiting term by the primary judge, the Mental Health (Criminal Procedure) Act has been amended by the Mental Health (Criminal Procedure) Amendment Act 2005 (NSW), Schedule 1 [14], so as to replace sub-s (5) and add sub-s (6), in relation to the identification of a commencement date with respect to a limiting term. These amendments, had they been in force at the relevant time, would not have affected the back-dating undertaken by the primary judge, nor do they have any different effect now, should this Court nominate a fresh limiting term.

4 In the present case, a limiting term was nominated by the primary judge in the District Court. The Criminal Appeal Act 1912 (NSW), s 2(1) defines “Sentence” to mean, amongst other orders,

“(d) any order made by the court of trial imposing a limiting term of imprisonment on a person under section 23(1) of the Mental Health (Criminal Procedure) Act 1990 , and any other order or penalty made or imposed by the court of trial in respect of the person under section 23(2) of that Act.”

5 The circumstances of the present case are set out by Grove J. It is sufficient for present purposes to note that on 7 May 2004 the primary judge fixed a limiting term of 5 years in respect of each of the two offences, to run concurrently, and to date from 18 December 2002, being the day after the expiry of her previous sentences, including the balance of a term for which parole was revoked, as a result of the conduct the subject of the present indictment. That term will expire on 17 December 2007.

6 The fact that some four and a half years of the term has already expired is due to two circumstances. The first is the back-dating for a period of some 17 months. The second is that an application for leave to appeal was not filed until 26 April 2007.

Extension of time

7 There is a large and no doubt growing body of caselaw expressing the reluctance of this Court to grant extensions of time where applications are seriously delayed, absent exceptional circumstances: the authorities were conveniently summarized in R v Young [1999] NSWCCA 275 at [31]-[50] (Smart AJ, Studdert and Dunford JJ agreeing). Without departing from the principles established in that line of authority, a different approach may be required in relation to a person who has been found unfit to plead due to mental illness or disability. For the reasons given by Grove J the applicant should be granted an extension of time within which to file her notice of application for leave to appeal until 27 April 2006.

Further evidence

8 In Regina v Ehrenburg (unrep, 14 December 1990) this Court noted that evidence of events subsequent to the imposition of a sentence are “ordinarily irrelevant”: p 5. Loveday J, with whom Gleeson CJ and Samuels JA agreed, continued:

“One circumstance that can make them relevant is if the subsequent events make known or explain something that was either unknown or not fully appreciated at the time of sentencing. An example of this is where a prisoner is sentenced not knowing that he is suffering from AIDS. The subsequent diagnosis means that his period in custody will cause him additional hardship.”

9 In Rigby v Regina [2006] NSWCCA 205 at [72] Kirby J (Studdert and Johnson JJ agreeing) held that further material could be admitted if it satisfied the tests of “fresh evidence”, which was relevant to the circumstances at the time of sentence, the absence of which was not due to lack of diligence on the part of the applicant’s legal representatives.

10 In considering the relevance of further evidence on appeal, it is helpful to note the purpose for which it is sought to be introduced. If that purpose is to demonstrate error on the part of the sentencing judge, it will not usually be relevant. On the other hand, where it is tendered in order to assist this Court in resentencing an offender, once error has been identified, relevance may well be established. I would not admit evidence concerning the circumstances of the applicant, as they arose after the fixing of the limiting term, for the purposes of establishing error.

11 A further difficulty arises in relation to the tender of the evidence for the purpose of exercising the statutory discretion afresh. If that exercise becomes necessary, as I believe it does, the delay in bringing the present application may be seen to have conflicting effects. On the one hand, there is a real difficulty in formulating an appropriate new limiting term, given the relatively short period before the effluxion of the present term. On the other hand, the delay means that quite considerable material is now available which could not, on any view, have been available to the primary judge when fixing the limiting term nor to this Court, had the application been timely. Because I would not give significant weight to material which to a large extent reflects the expectations at the time of fixing the limiting term, in my view it is preferable to undertake that exercise without the distraction of a significant volume of new material of relatively little weight. Accordingly, I would reject the tender: Evidence Act 1995 (NSW) ss 55(1) and 135(c).

Error in nominating limiting term

12 The exercise required by s 23(1)(b) involved a lack of clarity in some respects. First, although the term is not a penalty as such, imposed by the Court, s 23 itself appears to treat it as a “penalty” because, where imprisonment is not deemed appropriate, the Court is authorised to impose “such other penalty” as it might have done on conviction for a criminal offence: s 23(2). Further, s 10(4) of the Mental Health (Criminal Procedure) Act also tends to imply that the fixing of a limiting term and the consequent detention, following a special hearing, may involve the infliction of a “punishment”. Similarly, where the Mental Health Review Tribunal recommends the release of a person who has been held in detention following the nomination of a limiting term, the Attorney-General may object to the person’s release on the ground that “the person has served insufficient time in custody or under detention”: Mental Health Act 1990 (NSW), s 84(1). That is the view which has been adopted by the Court of Appeal and this Court: see DPP v Mills [2000] NSWCA 236 at [39] (Handley JA, Sheller JA agreeing) and Smith v Regina [2007] NSWCCA 39 at [63] (Hall J, Sully and Howie JJ agreeing); cf Regina v AN (No. 2) [2006] NSWCCA 218 at [32].

13 The nature of the exercise also reveals ambivalence as to how (if at all) the mental illness of the offender is to be taken into account. On one view, the hypothetical assumption of a sentence estimated as appropriate following a “normal trial of criminal proceedings against a person who is fit to be tried for that offence” would appear to render the mental illness relevant. However, mental illness or disability should be highly relevant to that sentencing exercise and, on one view, should not readily be seen as irrelevant merely because the degree of illness or disability has passed the boundary beyond which the person cannot be tried. If that were intended, with potentially significant adverse consequences for the offender, one would expect the Parliament to have stated that consequence clearly and unequivocally. That not having been done, the preferable construction is one which attributes to the offender her actual mental characteristics, but assumes that she was subjected to a normal trial.

14 Recent caselaw concerning the proper approach to sentencing a person with mental illness is extensive. In this Court, the principles were adverted to in R v Henry (1999) 46 NSWLR 346, in particular by Wood CJ at CL at [252]-[254], where his Honour distinguished drug addiction from mental abnormality. More recently, the principles were referred to by Spigelman CJ in R v Israil [2002] NSWCCA 255 at [23]-[26]. Most recently, the principles have been reconsidered and restated by the Victorian Court of Appeal in The Queen v Verdins [2007] VSCA 102 at [32] (Maxwell P, Buchanan and Vincent JJA), following and elaborating upon the statements in R v Tsiaras [1996] 1 VR 398, in the following terms:

“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”

15 In Israil, Spigelman CJ noted the doubts expressed by Malcolm CJ as to the relevance of proposition 5 in Western Australia, but noted that it appeared to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25], and saw no reason why it should not be so: at [26]. Proposition 6 was an addition to the five propositions stated in Tsiaras, and was designed to give specific recognition to the second of two possible consequences of imprisonment identified by King CJ in R v Smith (1987) 44 SASR 587 at 589:

“Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse affect on the offender’s health.”

16 With the possible exception of proposition 2, which may have limited relevance where imprisonment has been identified as the relevant penalty, these propositions have been broadly accepted, although without the same level of definition and discussion, in other cases in this Court, including R v Hemsley [2004] NSWCCA 228 at [33]-[35] (Sperling J). His Honour noted a countervailing consideration, namely the level of danger which the offender presents to the community: at [36].

17 This last remark must be read in the context of the principles established in Veen v The Queen [No. 2] (1987-1988) 164 CLR 465, at 473 in the judgment of Mason CJ, Brennan, Dawson and Toohey JJ to the following effect:

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

18 Further, in Veen [No. 2], Wilson J explained the issue at p 487, in terms with which Deane J (p 490) and Gaudron J (p 496) agreed:

“The difficulty arises in determining the effect that the element of protection of the community may properly have in arriving at a particular sentence. In my view, it should not have the effect of increasing a sentence beyond the longest sentence that the actual offence charged, when viewed objectively, would justify.”

Approach of primary judge

19 In the present case, the primary judge, Geraghty DCJ, outlined the circumstances which he was required to take into account in nominating a limiting term. He noted the assessment made of the applicant by Dr Michael Guiffrida, in the following terms (Judgment, pp2-3):

“He has assessed her as having an intelligence range in the lowest three to four percent of the population. On measures of social competence, he said that she probably functions below borderline range of intelligence.
In addition, she clearly has a severe personality disorder, with both borderline and anti-social traits of personality functioning. He said that this was characterised by an extreme degree of impulsiveness and recklessness, together with highly risk-taking behaviour, substance abuse, and extremely serious self-harm behaviour. Her anti-social traits include ongoing and seemingly continuous episodes of rage, aggression, threatening behaviour and actual violence visited on custodial and health staff in the prison system.”

20 His Honour further noted Dr Guiffrida’s opinion that the applicant should be given a trial on the medication Clozapine, which in practical terms could only be dispensed as an in-patient at B Ward at Long Bay. Dr Guiffrida stated (Judgment, p 4-5):

“My hope is that she should respond with some benefit to the Clozapine medication, that there could be a gradual stepping down in the level of security and restriction, such that she could be transferred at some later stage to the Bunya Unit at Cumberland Hospital, thence to the cottages of open wards of Cumberland Hospital, and ultimate[ly] to release to some appropriately supervised accommodation in the community. My guess is that she will always require some degree of supervised accommodation for people with so-called dual diagnosis problems. In Ms Courtney’s case the matter is not so much one of dual diagnosis as quadruple diagnosis.”

21 His Honour then considered (pp 6-7) the exercise to be undertaken in setting a limiting term. He referred to R v Engert (1996) 84 A Crim R 67 where Gleeson CJ, at p 68, had noted (in the primary judge’s paraphrase) that in sentencing a person with mental illness, “the principles of general deterrence (which normally apply to sentencing) are given less weight” and that “the Court should give more specific consideration to the question of specific deterrence”: Courtney at p 7. His Honour also noted a submission put on behalf of the Director that he should “pay particular attention” to protection of the community from the offender in setting a limiting term. His Honour referred to factors of aggravation and mitigation derived from s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the guidance which might be obtained from the guideline judgment in R v Henry (1999) 46 NSWLR 346. His discussion of the mitigating factors, in particular, should be set out in full (p 8):

“As to the mitigating factors I should say that I do not have any evidence that the injury or the emotional harm, the loss or the damage which was caused by the offence was substantial. It was a reckless, immediate, unplanned incursion into somebody’s private space with a knife, but neither of the elderly ladies came forward to say that they had been traumatised or damaged.
Subs (b) [par (3)(b)] provides as a mitigating factor that the offence was not part of a planned or organised criminal activity and it’s clear from this lady’s mental condition that it was not something that she planned or organised in any acceptable way.
Subs (j) [par (3)(j)] requires that I consider also whether the offender was not fully aware of the consequences of her action because of her disability, and I do take this into consideration also.”

An appropriate limiting term

22 There are three aspects of his Honour’s reasons which give rise to concern. The first two may be explained by reference to express statements in the reasons; the third is a more general concern. The first is the suggestion that R v Engert supported the proposition that in the case of a mentally ill person the Court should give “more specific consideration to the question of specific deterrence”. In fact, I see no such encouragement in Engert and, indeed, it would be consistent with principle that specific deterrence should itself have a constrained operation in circumstances where the evidence demonstrates that the offender is unable or unlikely to modify her behaviour as a result of the sentence. The very fact that she continued to act in the ways described by Dr Guiffrida whilst in custody demonstrate that deterrence is, in a real sense, virtually an irrelevant consideration in relation to her own conduct.

23 The second matter for concern is that although his Honour referred to s 21A(3)(j) as a mitigating factor, namely that “the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability”, it is not clear how it was taken into account. Generally speaking, the statement that it was taken into consideration should be taken at face value, without the need for any precise explanation of how it affected the ultimate outcome. However, in this case, it was a matter of high relevance and suggested the inappropriateness of the earlier comment that “more specific consideration” should be given to the question of specific deterrence. These propositions required reconciliation.

24 Thirdly, there was, again, no error in principle in taking into account the proposition derived from s 3A(c) of the Crimes (Sentencing Procedure) Act, that one of the purposes of imposing a sentence was “to protect the community from the offender”, at a level of generality. However, it should be noted that immediately following his Honour’s comments in relation to the protection of the community from the particular offender, he noted other considerations in s 21A(2), namely that the offender had “a lengthy record of previous offences and convictions” and that the offences in question were committed “while she was on conditional liberty” in relation to an alleged offence and whilst she was on parole for an offence of armed robbery.

25 Whilst protection of the community is a relevant consideration, its operation in a specific case such as this must be identified with care, lest there be a breach of the principles identified in Veen [No. 2], with the danger that the sentence imposed will be greater than that which the objective circumstances of the offence would warrant. Similarly, a reference to the lengthy record and the commission of offences whilst on conditional liberty, also require care lest there be a failure to apply “the principle of proportionality” which requires “the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions”: Regina v McNaughton [2006] NSWCCA 242 at [24] (Spigelman CJ, referring to Veen [No. 2] and Baumer v The Queen (1988) 166 CLR 51 at 57-58).

26 The overwhelming feature of the present case is that no imprisonment, past or present, has had or is likely to have any effect on the behaviour of the applicant. Her care and control, and the protection of the community, will ultimately depend on a combination of medical treatment and the operation of the Mental Health Act. In those circumstances, the likelihood of the applicant enjoying extended periods of unconditional liberty, absent effective medical treatment, appears to be remote. Nevertheless, the application of proper principle in establishing a limiting term under s 23 of the Mental Health (Criminal Procedure) Act should be observed, all the more meticulously, because the answers to the intractable problems that the applicant presents will not ultimately be found solely, or perhaps at all, within the criminal justice system.

27 Adopting the propositions set out in Verdins, together with their accompanying explanations, there should, it seems to me, have been some lesser penalty imposed on this particular applicant. No reasonable person could see general deterrence as a significant element in the setting of a limiting term for her. Nor can specific deterrence in relation to her own future conduct be treated as a significant element. Her personal moral culpability must also be seen as limited. It could well have been predicted at the date of nominating the limiting term, that the sentence would be served, to a significant degree, in isolation and in circumstances which would exacerbate, rather than ameliorate her mental illnesses.

28 Taken together, these factors should have resulted in a sentence significantly below that which would have been imposed on a person not suffering such mental illnesses. In my view an appropriate limiting term would have been a period of no more than four years six months. However, to nominate such a term now would result in the immediate release of the applicant from her present custody, without the opportunity for any appropriate steps to be taken in relation to the operation of the Mental Health Act. In a practical sense, this would be in no one’s interest. Accordingly, given the exigencies of the situation, in large part the result of the belated application for leave to appeal, I would grant leave to appeal, set aside the limiting term nominated by the primary judge, and in lieu thereof, nominate a limiting term of four years nine months to commence on 18 December 2002 and to expire on 17 September 2007.

29 GROVE J: This case reveals an immense personal tragedy affecting the appellant, and I will later refer to some facets of it. Before the Court is an application to extend the time for appeal and for leave to appeal against sentence. At Penrith District Court Geraghty DCJ imposed concurrent limiting terms of five years imprisonment following findings after a special hearing, on the limited evidence available, that the appellant committed two offences of assault with intent to rob being armed with an offensive weapon, and, robbery whilst armed with an offensive weapon. Limiting terms are within the definition of sentence for the purposes of the Criminal Appeal Act 1912 (s 2).

30 The facts of the first offence were these. On Friday 5 January 2001 the victim, a forty eight year old woman, was sitting alone at Blacktown interchange waiting for a bus. The appellant approached her and produced a knife from a plastic bag, which she waved at her and said “Give me the bag”. The victim refused and a debate of sorts ensued which terminated when the appellant produced a packet of biscuits, hit the victim on the head with the packet and then walked away without taking anything from the victim.

31 The second offence occurred on the next day. The victim, a fifty five year old woman, was placing items into the boot of her car, which was in a shopping centre car park, again at Blacktown. The appellant approached with a knife in her hand and said “Give me your bag, give me your fucking bag”. The victim attempted to set off her car alarm but the appellant prodded at her with the knife and she surrendered her bag as the appellant was pulling it from her shoulder.

32 The appellant has numerous prior convictions but, significantly, on 31 July 2000 she had been convicted of robbery whilst armed with an offensive weapon and sentenced (taking into account matters on a Form 1, including a charge of demanding money with menaces) to imprisonment for three years with a non-parole period of nine months commencing on 16 December 1999, with parole conditions of supervision, attending medical and counselling services, taking medication determined by a psychiatrist and when released to be placed into the custody of a person for return to New Zealand. It is apparent that she did not return to New Zealand and was on parole at the time of the current offences.

33 That parole was revoked on 17 January 2001 and she served the balance of parole which expired on 17 December 2002.

34 On 24 June 2002, after a hearing on that day, O’Reilly DCJ found the appellant unfit to be tried for the offences alleged to have occurred on 5 and 6 January 2001 and referred her to the Mental Health Tribunal (the Tribunal) pursuant to the Mental Health (Criminal Procedure) Act 1990. On 1 May 2003 the Tribunal determined that the appellant would not, during the period of twelve months after that finding, become fit to be tried on the charges and the Attorney General was notified of this. On 3 June 2003 the Attorney General directed that there be a special hearing in respect of the offences.

35 The special hearing was conducted by Geraghty DCJ sitting without a jury on 24 March 2004 and he published his findings on the following day and imposed the limiting terms on 7 May 2004. His Honour directed the limiting terms to date from 18 December 2002, the day after the expiry of the balance of parole which the appellant served after the revocation of parole on 17 January 2001.

36 The limiting terms therefore will themselves expire on 17 December 2007, that is to say, in less than six months time. The Form IV notice of appeal or notice of application for leave to appeal is dated 24 April 2007 and it is notated as received in the Registry on 26 April 2007.

37 Upon the matter being called for hearing, senior counsel for the appellant sought to read a number of affidavits on three bases, first, on the application to extend time, second, to be taken into account if the Court came to the question of resentence and, third, “because of the extraordinary nature of what has occurred” as fresh evidence.

38 The Crown Prosecutor did not object to what was proposed on the first and second bases (although the extension of time was opposed) but did object to the affidavits being read on the third basis. The Court deferred ruling on this lastmentioned.

39 It is convenient to deal with the grounds of appeal in sequence. Ground 1:

“The proceedings miscarried because his Honour failed to take into account the hardship suffered as a result of the conditions of the applicant’s custody.”

40 It is to be observed that when imposing the limiting terms his Honour said:

“I also recommend as strongly as I can that she be placed in B Ward at Long Bay initially; that from there she be assessed, and she will be every six months, where her treatment will be reviewed, the need for security established and referred to appropriate locations.”

41 Section 24 of the Mental Health (Criminal Procedure) Act 1990 provides:

“ Consequences of nomination of limiting term
(1) If in respect of a person a Court has nominated a limiting term, the Court:

(a) must refer the person to the Mental Health Review Tribunal, and

(b) may make such order with respect to the custody of the person as the Court considers appropriate.

(2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not:

(a) the person is suffering from mental illness, or

(b) the person is suffering from a mental condition for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital.
(3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person.”

42 His Honour does not seem to have made an order in respect of custody as he was empowered to do pursuant to s 24(1)(b) but articulated the recommendation above quoted. Nevertheless, on 20 August 2004 the Tribunal made a determination pursuant to s 24(2) that the appellant was suffering from a mental illness. The endorsement of reasons concludes with the following:

“…..Ms Courtney presents challenging problems in regard to her care, treatment and detention. Since the review conducted by the Tribunal in June 2004 Ms Courtney was transferred from Mulawa to B Ward at Long Bay Prison Hospital. However, shortly after this transfer Ms Courtney assaulted a fellow patient and a decision was then made to transfer her back to Mulawa where she now resides.
Challenging though Ms Courtney’s behaviour may be, it remains the Tribunal’s review that as a mentally ill person she should be detained in a hospital rather than a prison. Despite this view, which is in accord with widely recognised principles of international humanitarian law, no hospital exists within the jurisdiction which can (or will) accommodate Ms Courtney, or a number of other highly disturbed and dangerous female forensic patients. This situation seems likely to prevail until construction is complete of a new forensic hospital in 2006 or 2007.”

43 On 12 August 2004 a warrant of commitment issued reciting an order referring the appellant to the Tribunal and also stating:

“…..and that she remains in custody while the Tribunal makes its assessment, and,
His Honour recommend that the offender be initially be kept in the prison hospital placement in B Ward Long Bay.”

44 The warrant also had this subscription endorsed:

“NOTE: This Order replaces order issued on 7th May 2004 (Order Pursuant to Section 39 of the Mental Health (Criminal Procedure) Act 1990.”

45 Section 39 deals with occasions where there has been a special verdict of not guilty by reason of mental illness and I conclude that an earlier warrant had been issued in error. It can be inferred that the Tribunal notified Geraghty DCJ of its determination as required by s 24(3) and a manuscript dated 21 October 2004 signed by his Honour reads:

“I order that Lisa Michelle Courtney be detained so that she may be brought into the forensic mental health system for ongoing review by the Mental Health Review Tribunal.
I make this order pursuant to sect 27 of the Mental Health (Criminal Procedure) act 1990.”

46 The order in those terms does not coordinate with the terms of s 27 which provides:

“Orders Court may make following determination of Mental Health Review Tribunal after limiting term is imposed.
If a Court is notified by the Mental Health Review Tribunal of its determination in respect of a person under section 24(3), the Court may:
(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital – order that the person be taken to and detained in a hospital, or
……..”

47 Save the quotations from statute, the foregoing information ought to be in the records of the court below but are conveniently found in annexures to the affidavit of William Dickens affirmed on 2 May 2007 and in a bundle of documents which were tendered at the hearing of the appeal and in respect of which tender no final ruling was made. Insofar as they represent copies of court records I see no reason why their content should not be the subject of reference.

48 The tracing of these matters offers possible explanation for the events which later occurred, that is to say that the appellant remained in prison custody and that by reason of her behaviour she spent extensive periods in segregation from other inmates.

49 The thrust of the appellant’s argument in support of ground 1 is an assertion that her conditions of custody have been unduly onerous and ought to have been taken into account in assessing the limiting terms. There is ample authority for the proposition that unduly onerous conditions of custody may lead to mitigation of the length of sentence: R v Schneidas (unreported, NSWCCA 22 August 1994); AB v The Queen (1999) 198 CLR 11.

50 The tender of affidavit material as fresh evidence (the third basis of tender) sought to detail what has in fact happened in the years that have passed since the appellant was committed to custody pursuant to the imposition of the limiting term.

51 The sentencing judge was not insensitive to the exceptional situation of the appellant. He made extensive reference to the records of the appellant’s behaviour in custody and the psychiatric opinion which included assessment that she was at extremely high risk of harm to herself and others, and that, as a consequence of assaults, she had been held in complete segregation because of the risk issues.

52 There was nothing before his Honour nor did he make any finding that the risk, and therefore the anticipated response, was likely to alter.

53 I am unpersuaded that his Honour overlooked the particular hardship which custody would mean for the appellant although, or course, he would not have been seized with precise detail. I would reject this ground.

54 The above reference to s 27 shows that the availability of a suitable hospital was not canvassed as the terms of that provision clearly contemplate, but it is conceded by senior counsel for the appellant, correctly in my view, that no appeal lies to this Court to remedy any failure to implement that section.

55 Ground 2. “The proceedings miscarried because his Honour failed to properly take into account the impact of the applicant’s mental illness”.

56 His Honour said:

“I was referred also to R v Engert [1996] 84 A Crim R 67 which dealt with sentencing of a person with mental illness in which the proposition was espoused that the principles of general deterrence (which normally apply to sentencing) are given less weight in the case of a mentally ill person; and that the Court should give more specific consideration to the question of specific deterrence.”

57 Both counsel for the appellant and the Crown Prosecutor acknowledged the authority of Engert in which, inter alia, Gleeson CJ approved observations in other cases to the effect that, where an offender suffered a mental illness or abnormality, general deterrence is a factor which should often be given little weight, but that in every case it is a matter for balancing relevant factors in the same fashion as occurs in every sentencing exercise.

58 It is contended by the appellant that there is no rule that “more specific consideration” should be given to specific deterrence than to general deterrence. His Honour did not say that he was according greater weight to specific deterrence and it is a rational approach, when it is concluded that an offender is not a suitable vehicle for the deterrence of others because of mental illness, to have particular focus upon deterrence of the individual. I do not understand his Honour to have been saying any more than that.

59 Although it may be considered that the circumstances of these offences suggested opportunistic behaviour which may have been inspired by abnormal capacity for judgment, the selected victims were alone and apparently vulnerable to threat with the weapon with which the appellant had come equipped. When assessing matters relating to mental illness which might attract mitigation it is necessary to assess the countervailing consideration of the level of danger which the offender presents to the community: R v Israil [2002] NSWCCA 255. It is undeniable that the appellant is a person representing a high level of risk.

60 This ground is not made out.

61 Ground 3. “The proceedings miscarried because his Honour erred in formulating a sentence on the presumption that the applicant would not be in gaol for the entire period of the limiting terms.”

62 This complaint is to be analysed in the context of what his Honour said in his remarks on sentence, which was:

“It is clear that handing down a limiting period sentence does not mean that the offender will be in gaol for that period, or for any period more than six, or twelve, or eighteen months, since she comes under review every six months and assessments are made about her ability to be rehabilitated, or to be moved somewhere else. So the purpose of setting a limiting period is simply to set a period beyond which a person cannot be detained for the offence which was the subject of the special hearing.”

63 Arising out of the procedures which I have above recounted, the appellant became a “forensic patient” within the meaning of Schedule 1 to the Mental Health Act 1990. The subsequent procedures have been described in R v Mitchell [1999] 108 A Crim R 85 at p 89:

“Chapter 5 of the Mental Health Act deals with forensic patients. The Tribunal must review forensic patients at least once every six months and make a recommendation to the Minister for Health as to the patient’s continued detention, care or treatment, fitness to be tried for an offence and release (conditional or unconditional): s 82 Mental Health Act . A recommendation for release triggers a series of steps which may lead to the patient’s release: ss 83, 84, Mental Health Act . Pursuant to ss 28-30 of the Mental Health (Criminal Procedure) Act if, prior to release during a limiting term, a person is found by the Tribunal to have become fit to be tried, and this is confirmed by the court, the criminal proceedings are continued.
At the end of the limiting term, release from custody as a forensic patient is automatic.”

64 What was stated by his Honour was entirely compatible with what appears in that judgment.

65 His Honour was required to estimate a total sentence and not a minimum term or non-parole period: R v Mailes [2003] 141 A Crim R 353. He did so.

66 When he added, after imposing the limiting terms “this does not mean that you will necessarily serve five years in prison, but you will come under review every six months” there was no implication that the sentence would necessarily, or even probably, lead to the release before expiry of the limiting terms. Neither is it to be inferred that his Honour assessed the terms on the basis that there would be such a release nor on the basis that the appellant might not be required to serve the terms in a prison. Whether his Honour harboured a hope, or even an expectation, that his recommendation that the appellant be placed in a hospital, would be fulfilled, it is plain that in setting the term he was conscious that the appellant may be detained in a prison.

67 The argument of the appellant fails.

68 Ground 4. “The proceedings miscarried because his Honour failed to consider the issue of totality.”

69 In his remarks on sentence his Honour did not refer to “the principle of totality” which, as has been said, is a convenient phrase descriptive of a practical consideration: R v Holder & anor (1983) 3 NSWLR 245.

70 The thrust of the appellant’s argument is targeted to the commencement date of the limiting terms at the expiry of the balance of parole as abovementioned. The present offences plainly amounted to breaches of parole, which was revoked within two weeks of their commission. His Honour stated that he noted that the appellant was at conditional liberty and on parole when the offences were committed in the context of referring to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, clearly indicating that he took the circumstance into account as an aggravating factor.

71 It was contended that taking that aggravating factor into account in assessing the length of the limiting terms when the appellant had been required to serve the balance of parole only at the end of which the limiting terms commenced, involved an element of double counting.

72 It was not disputed that his Honour had a discretion to exercise. In R v Callaghan [2006] NSWCCA 58, Simpson J (James and Hall JJ agreeing) said:

“There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.”

73 On an assumption that the absence of reference can be interpreted as showing that his Honour did not turn his mind to the exercise of this discretion and presuming that that demonstrates error, as I understand senior counsel for the appellant to acknowledge, the intervention of this Court would not be attracted unless some lesser “sentence” was warranted in law. There were many factors to be balanced in this sentencing exercise but the result, in my opinion, is well within the range of the sound exercise of sentencing discretion and I would not intervene to reduce the limiting terms.

74 None of the grounds of appeal which have been argued are sustained. In opening oral argument senior counsel for the appellant referred to the avoidance of the appellant’s situation being placed in the “too hard basket”. It must be remembered that this is a court of error established and vested with powers by its constituting statute, which powers must be exercised accordingly. It is not a tribunal of general review. The consequence of the failure of the grounds presented is that the appeal should be dismissed.

75 However, the affidavit evidence to which I have referred is before the Court, without objection, for the purpose of the application to extend time. I would rule against its receipt as fresh evidence in the appeal. The material has, of course, been seen in support of the first basis but, even if it were received in the appeal the question would remain whether the additional evidence would lead to a different sentence: R v Eliasen [1991] 53 A Crim R 391. For reasons already expressed, I do not consider that it should.

76 I accept that the appellant’s illnesses, handicaps and general conditions of custody sustain the making of an order to extend the time for lodging an appeal. I also advert to the procedural matters previously described.

77 At the outset I said I would return to some aspects of the appellant’s situation. The most recent review by the Tribunal dated 24 April 2007 recommends:

“That the current arrangements for Ms Lisa Michelle Courtney’s care, treatment and detention as a forensic patient at Silverwater Women’s Correctional Centre should continue to apply.”

78 The reasons expressed for reaching that determination are eloquent of what I have referred to as tragedy:

“As was pointed out in the remarks following the 6th review Ms Courtney is at severe risk of self harm from her own conduct. The use of pens and pencils and so on has been found to be dangerous. She has had ongoing problems of violence to herself and has had altercations with staff and others.
It remains perfectly obvious that preparations should be made now for the prospect of Ms Courtney having to be released from her preset environment. There is no hospital available for her in New South Wales although it is clear that Ms Courtney should be in a hospital if there is one capable of accommodating her.
Because of the high risk of violence there is no access to therapeutic facilities.
CONCLUSION
There appears, unfortunately, absolutely no alternative at the moment but to recommend that the current arrangements for Ms Courtney’s care, treatment and detention as a forensic patient at the Mulawa Correctional Centre should continue to apply.”

79 As observed, the limiting terms will expire in December next and the appellant will automatically be released.

80 Although I have iterated the limits under which this Court appropriately operates, it will not trespass upon other jurisdiction to seek in this judgment to draw attention to the urgency with which adequate arrangements must be made for the sake of both the appellant and the community to respond to the impending inevitable return by her into that community.

81 I propose that necessary extension of time and leave to appeal against sentence be granted but that the appeal be dismissed.

82 HOWIE J: I agree with the orders proposed by Grove J substantially for the reasons stated by his Honour. It is in my opinion apposite to quote from the judgment of Gleeson CJ in R v Engert (1995) 84 A Crim R 67:

Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 as follows: "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform".

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen No 2 Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

83 The fact that an offender is mentally ill does not mean that the sentence imposed must be less than that imposed upon a person who commits the same criminal act without any abnormality of mind. It may do so for all the reasons given in R v Israil [2002] NSWCCA 225. In particular the fact that the offender is suffering from a mental illness may reduce the person’s culpability. But even that fact does not necessarily result in a lesser sentence. Mr Veen’s culpability for the second killing was diminished by reason of his mental illness but it did not mean that the maximum penalty for the offence was not appropriate: Veen v The Queen (No 2) (1988) 164 CLR 465. This was because the protection of the public required that he be sentenced to a period of imprisonment by way of preventative detention because of his danger to society. Provided that the sentence is commensurate with the gravity of the offence viewed objectively, there is no error of principle in imposing a sentence aimed at protecting the community from the offender’s recidivism by removing him or her from society.

84 The judges in the joint judgment in Veen (No 2) stated at 473:

It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible…………………………

85 The Court was there concerned with the apparently anomalous situation of the imposition of a heavier sentence on a dangerous offender whose culpability is reduced because of a mental illness. But as was made clear both in the joint judgment and in other decisions concerned with the sentencing of mentally ill offenders, there are considerations that point in different directions when determining the appropriate sentence in such a case.

86 In the present case the Judge was in error in referring to the need for personal deterrence in sentencing the applicant. As Basten JA points out, that was not a valid concern here because it is obvious that personal deterrence will have no effect. However, that makes the applicant more of a danger to other members of the community because she will follow her urges regardless of what the penalty will be, or has been, imposed upon her for similar conduct. The offences were serious and in my view warranted the sentence imposed upon the applicant notwithstanding the difficulties occasioned to her and the prison system by trying to protect others and the applicant herself from her dangerous behaviour.

87 Even if error were established in the exercise of the Judge’s discretion in what was a difficult case, I am firmly of the view that no lesser sentence is warranted. The sentence imposed was clearly proportionate to her criminality viewed objectively and was necessary for the protection of the public.

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